On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”).  This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance.  Though not binding, Courts have treated EEOC’s views as being persuasive authority, suggesting these rules will significantly impact how retaliation claims unfold. This is the fifth post in our series, and it examines how courts determine causation in retaliation claims.

A materially adverse action does not violate the EEO laws unless there is a causal connection between the action and a protected activity.  In determining whether such a causal link existed, the courts use two different standards depending on the type of case.  In private section and state/local government retaliation cases, the courts use the “but for” standard, i.e. "but for" a retaliatory motive, the employer would not have taken the adverse action.  This does not mean that retaliatory motive was the sole motive, only that without it, the action would not have been taken. In contrast, federal Title VII and ADEA retaliation cases use a “motivating factor” test, which reflects that federal agencies are not prohibited from specific discriminatory acts but required to make employment decisions "free from any discrimination.”

Once a retaliation claim has been brought, the employee bears the burden of presenting evidence that it is more likely than not that retaliation has occurred. This can be demonstrated by singular pieces of evidence, or based upon a “mosaic” of different actions.  Such evidence can include written and oral statements by or from the employer/employee, suspicious timing of with respect to the protected act and adverse action being taken (short time more likely to show causality), comparative evidence (disparate treatment, selective enforcement, etc.), or inconsistent or changing explanations for certain acts.  This evidence will often be rebutted by the employer, who will proffer a non-discriminatory or non-retaliatory explanation.  Based on the other evidence provided, the Court will either accept the given reasons, or find that such reasons are a pretext meant to obscure illegal acts.

Our next post will look at ways employers can overcome retaliation claims.  The full Guidance can be found here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm